9th Circuit Court Finds 'Thumbnailing' Fair Use

mark_wilkins writes "A photographer named Leslie Kelly had sued Arriba Soft Corporation for infringing his copyrights to photos when they made thumbnails of his pictures and stored them in a public image search engine. Today the federal 9th Circuit Court of Appeals affirmed the district court's ruling that making these thumbnail copies of images for the search engine was 'fair use.' Since the applicability of fair-use defenses to copyright infringement touches on all kinds of common uses of the Internet as well as rulemaking related to the scope of the DMCA, this decision will probably have an effect on the discussion. (Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)" Note that the court also reversed in part the lower court's ruling, specifically saying that the lower court should not have ruled on "whether the display of the larger image is a violation of Kelly's exclusive right to publically display his works."

Re:Applying the same logic

[(54)T-Dub]

I believe this is already the case. I believe that artists/radio stations can use samples (shorter than 30 seconds i think) without having to pay for them.

as much as this makes sense...

[ecalkin]

don't get your hopes up. the 9th circuit is the most often overturned court in the federal system. nothing is settled with this until the supreme court makes a case of it.

eric

Google's Policy

[heli0]

Google will go a step further and remove the location of your image as well as the thumbnail of your image from their image search database if you request it. The email is dmca-images'AT'google'DOT'com

Remove an image from Google's Image Search [google.com]

I wonder if they will consider changing that policy now?

I think Thumbnails should be ok because....

[greymond]

ok heres my 2 and a half cents...

When I was working at Kinkos we weren't allowed to make copies of pictures from books because the photographs in them were copyrighted. (now whether or not YOU went into a Kinkos and did this I don't care i'm just telling you a FACT as a ex-employee this is the LAW)

However, there are exceptions to this. 1 if it is for Educational use and 2 anyone can make a copy of the image as long as it was at least 90% smaller or 110% larger than the original (somewhere around there it had to be smaller or larger basically.)

Therefore it would make sense TO ME that if you are creating thumbnails of a copyrighted work AND linking to the original page or image then that should be allowed, since I would put them in the same category. (images and pictures that is.)

I wouldn't say that

[SweetAndSourJesus]

In 1991's Biz Markie vs. Gilbert O'Sullivan [google.com] debacle, Markie lost his case and O'Sullivan was awarded punitive damages.

In the United States, any sampling is considered a violation of copyright. [music-law.com]

Courts and "binding" rulings

[djembe2k]

IANAL, yadda, but . . .

There's some confusion here -- let's separate "binding" from "precent". Anything can be a precedent. Binding is another matter.

Circuit courts are a strange system. Each of the circuits covers several states. What a particular circuit rules is always binding in that circuit. By "binding", this means that lower courts (namely, federal district courts) should consider that ruling the "law of the land" when they make their decisions.

What this means is that the law of the land in one circuit (and therefore in one state) may different from that in another. A law found constitutional in one state may be unconstitutional in another. Only the Supreme Court can resolve these differences, and although the S.C. turns down far more cases than it hears, it almost never turns down a case that will resolve a conflict among circuits. And of course, rulings by the S.C. are always binding on all federal courts.

The "only a three judge panel" part is confusing. Usually, when a case is heard in Circuit Court, three judges (from the 10 or 15 or so in that circuit) will hear the case, and the "best out of three" wins. In some rare cases, the entire circuit will sit "in panel" to hear a case -- often if they want to review the finding of a three judge panel that seems out of whack. This is rare. But when the Circuit speaks as a whole in this way, that precent takes precedence over any previous three-panel decision in the circuit in the same case.

As I said, three judge panels are the norm. Their findings are perfect "binding" within the circuit.

Anybody who actually is a lawyer (or just knows better) can feel free to correct me -- I'm in a hurry and didn't have a chance to double-check the finer points, but in gross, this is how it works.

3 Judge Panel

[CaptainStormfield]

The submission incorrectly states that because this case was decided by a three-judge panel, it is not binding precedent. The U.S. Courts of Appeal typically hear cases in three judge panels. Very rarely, all of the judges in a particuar circuit court will hear a case "en banc." While the court sitting en banc can overturn a panel decision, the panel decision is binding precedent (whatever that means, especially in the murky area of fair use) unless and until it is overturned by 9th circiut sitting en banc, or by the U.S. Supreme Court. Of course, other Circuit Courts (e.g. the 10th circuit, the 6th Circuit, etc.) are not bound to follow precedents from their sister circuits, though they often do.

IAAL, but this post is not intended to constitute legal advice. If you need advice, see your lawyer, not Slashdot.

Precident by a 3 judge panel

[grolaw]

Just so long as the 9th Circuit doesn't grant a rehearing en banc, this is a "binding precident" in the 9th Circuit.

If the 9th does hear the case en banc (meaning at least 11 judges) and they uphold the decision then it is still binding precident in the 9th circuit.

If the U.S. Supreme Court takes cert. on the case (which can happen if one of the parties petitions for a rehearing en banc and it is denied or they lose the rehearing and still have money to spend and petition the Supremes for Cert. and they grant cert.) and the Supremes uphold the fair use holding, THEN IT IS BINDING PRECIDENT IN EVERY CIRCUIT IN THE U.S.

Only about as costly as a small war....

In my last major appeal in the 8th Circuit the quoted cost was $30k for the trial transcript (from a 1 week long trial). The 8th Cir. granted IFP status to my client and we got a copy of the transcript free, but still had to copy, number and bind a copy for each judge and the opposing side (still about $3k at Kinkos (tm)).

Why was this modded "Funny"?

[rjh]

The poster's absolutely correct. With very few exceptions (like, say, Louisiana), every court decision creates binding precedent throughout its jurisdiction. A panel decision possesses almost as much precedential value as an en banc decision; the only difference is an en banc hearing can overturn a panel decision, while a panel decision cannot overturn an en banc decision.

As a matter of practice, en bancs are almost superfluous. Looking at the statistics for the 8th Circuit Court of Appeals, they hand down unanimous panel decisions 97% of the time. This is for a court which is stocked almost straight 50/50 with appointees from hardcore Republicans and hardcore Democrats.

Only 3% of the time is a panel decision split; and less than 10% of the split decisions are sufficiently "interesting" (in a legal sense of the word) to warrant an en banc hearing.

If anyone's interested I can get statistics for the other circuits as well--I only know the 8th Circuit stats off the top of my head, though.

IANAL.

Re:Good

[Anonymous Coward]

For the billionth time:

1. The iTunes store sells AACs, not MP3s.
2. While songs may be 99 cents each, albums are nearly always $9.99, even if they contain 18 tracks.

*Sigh* The Big Lie Again

[Naum]

the 9th circuit is the most often overturned court in the federal system.

Chalk it up to the pervasive influence of the Moonie Times, Scaife funded foundations and Father Limbaugh ... proving that if something gets repeated enough, it is accepted as truth, despite facts to the contrary.

From a NY Times response by Judge Noonan Jr. of the aforementioned 9th circuit - you'll probably have to pay to get the article but here is a blurb:

"In the calendar year 2001, the Ninth Circuit terminated 10,372 cases, and was reversed in 14, with a correction rate of 1.35 per thousand. The Fourth Circuit, reputedly the most conservative circuit and the circuit with the second-largest number of cases reviewed by the Supreme Court, terminated 5,078 cases and was reversed in 7, making a correction rate of 1.38 per thousand."

Of course, you're free to adhere to the Moonie Times myth that the 9th circuit court is some aberration of justice totally out of alignment with the rest of the world and other judicial bodies...

RTFA--only fair use if doesnt hurt market

[rmm4pi8]

if you get down to page 12, you see that the court's opinion was based not only on the degradation in quality but on two other factors: the 'transformation in use' in that Kelly's work was for aesthetic value and Arriba's infringement was for informational value; and that Arriba's infringement was not competitive with the market for Kelly's product. it would seem that neither of these factors is present in mp3s of lower quality, and yet both are present in 30s clips of music, thus meshing well with law in those areas.

Re:what if I make my own?

[Anonymous Coward]

You don't understand "fair use". The court did not rule that the plaintiff didn't have the copyright on his photos -- it ruled that the defendant was not liable for copyright infringement because it was making "fair use" of plainitff's copyrighted images. So, in your hypothetical, you could sue any search engine you want for copyright infringement if you found that it was thumbnailing your thumbnailed images, but, at least in the Ninth Circuit, the "fair use" defense would trump your infringment claim. And, reading between the lines, it seems likely that the Ninth Circuit would find that inlining your images under the same arrangement as present in this case is a "fair use", too.

Re:Fair Use ...

[zenyu]

Creating a derivative work for commercial use is clearly copyright violation.

Nope, not if it's parody, or substancially transformative, or fits any legion of other exceptions. Fair use is fair use, except the more money you make the less you can take advantage of it. I can Xerox say a third of the little prince and hand it out in class, no problem. But someone writing a history book can copy maybe three or four pages of the little prince verbatim under fair use.

If you are a television network and your program has no redeeming social value, say you are CBS or ABC, then the rules are much tougher, you could read maybe a page of the little prince without troubles.

And then there is music. Just don't touch that dung heap at any cost. The courts seem to have held that music has no value to society and should be treated with less respect legally than hardcode child pornography viewings at the local crackhouse, a purely profit driven venture.

Re:When is a picture not a picture?

[reallocate]

The courts have traditionally considered the impact on the potential market or value of the original when determining if a copy is fair use. In this case, the use of thumbnails isn't likely to reduce the value or market potential of Mr. Kelly's photos. (Enhance the market potential, if anything.)

So, if all other points are moot, if someone convinces a court that thumbnails hurt his sales (or that music snippets hurt their CD sales), the court could consistently rule that it isn't fair use.

Assistive technologies

[yerricde]

How long before partially-sighted people start complaining that thumbnails discriminate against them and demand full-size images? Will the court protect that under the Americans With Disabilities Act?

No. Assistive technologies are commonplace that magnify the thumbnail but still do not produce an image that can reasonably substitute for what the photographer is trying to sell.

Re:Courts and "binding" rulings

[Darth_Foo]

Well, I am a lawyer (but I'm only licensed in one state and this is not to be considered legal advice . . . yada yada yada). You're pretty much correct; a 3 judge panel IS the norm in U.S. Circuit Courts of Appeals. The entire panel sitting together is called "en banc" and is extremely rare. So the decision IS precedential. Now the confusion may be coming from the fact that not all Courts of Appeals decisions are reported or published (that is, printed in the bound law reporters). Unpublished decisions are usually unpublished for a reason - they reaffirm existing law with no clarifications or corrections; they're based on really weird facts ("Bad cases make bad law!" - ancient legal maxim); or the judges aren't entirely comfortable with their decisions. Such decisions can only usually be cited in limited circumstances and they don't carry much weight with other cases at all. Published decisions are much more important as they are binding within their circuits and are often used by courts in other circuits to justify their decisions. Just FYI . . . (coming from one who HAS argued and gotten a reported, published decision from a U.S. Court of Appeals - my client lost!) YMMV . . .

Re:Interesting ruling...

[Guido del Confuso]

That impression is incorrect. There are (basically) three levels to the federal court system. The lowest level is district court, with each state being divided into one or more districts. Appeals from district court are heard in circuit court, with each circuit being comprised of the districts of several states. Appeals from circuit court go to the US Supreme Court, which may or may not choose to review the case. Should they refuse to hear it, the circuit court decision is usually binding within that circuit (that is, district courts within the circuit must abide by that decision, and that circuit court generally must do so as well, but other courts throughout the country are free to ignore it if they choose). There are some exceptions to this, but generally this is the case.

This is a very basic explanation, and although there are other courts, such as the Court of Appeals for the Federal Circuit (which hears cases coming out of special courts such as the U.S. Claims Court), generally a case will be heard by district court, then circuit court, then (very occasionally) by the Supreme Court.